Background

“Member States shall prohibit the placing on the market of tobacco for oral use, without prejudice to Article 151 of the Act of Accession of Austria, Finland and Sweden.”[1]

The TPD defines ‘tobacco for oral use’ as tobacco products for oral use, except those intended to be inhaled or chewed, made wholly or partly of tobacco, in powder or in particulate.
This includes moist snuff and snus, but does not include chewing tobacco or nasal snuff.

The TPD explains the ban, as follows:

Council Directive 89/622/EEC prohibited the sale in the Member States of certain types of tobacco for oral use. Directive 2001/37/EC reaffirmed that prohibition. Article 151 of the Act of Accession of Austria, Finland and Sweden grants Sweden a derogation from the prohibition. The prohibition of the sale of tobacco for oral use should be maintained in order to prevent the introduction in the Union (apart from Sweden) of a product that is addictive and has adverse health effects. For other smokeless tobacco products that are not produced for the mass market, strict provisions on labelling and certain provisions relating to their ingredients are considered sufficient to contain their expansion in the market beyond their traditional use.[1]

Why Snus and Other Oral Tobacco Was Originally Banned

The snus sales ban has been in place since 1992. This prohibition was a response to aggressive attempts to introduce US-style smokeless tobacco ‘Skoal Bandits’ into Europe.[2] Originally in partnership with British American Tobacco (BAT), the U.S. Smokeless Tobacco Company (UST), co-founder of European lobby group ESTOC and since 2008 a subsidiary of Altria, marketed the product in several European countries, including the UK and Ireland. A peer-reviewed study from the University of Bath, analysing internal tobacco industry documents, demonstrated that tobacco companies saw smokeless tobacco as having the potential ‘‘to generate new profits without cannibalising existing profits from cigarettes’’ in Europe, and that young people were a key target.[3]

Skoal Bandits was advertised as “the new way to enjoy tobacco”.[4] In the UK, students were both the target and the means of promotion.[3] An 1985 internal BAT memo reported that UST was ‘‘working the Universities’’, including paying students to promote Skoal Bandits to peers (Image 1).[5] Due to fear of this new tobacco product spreading across Europe, and its aggressive marketing tactics to young people, the European Parliament called for a total EU-wide ban on ‘oral tobacco’ sales in September 1987.[6][7] This call was preceded by a recommendation from the World Health Organization (WHO) urging countries with no history of smokeless tobacco use to pre-emptively ban this type of tobacco, in order to prevent a future public health problem.[7] In 1988 Ireland became the first European country to ban the sales of oral tobacco, followed in 1990 by the UK and Belgium.[8] They set a precedent for harmonising the internal market, and in 1992 an EU-wide sales ban of oral tobacco was enacted under the amended Labelling Directive.[3] This prohibition was reaffirmed in the 2001 TPD, and again in the 2014 TPD.

Between 1987, when the ban was first proposed, and 1992, when it was enacted, tobacco industry opposition to this ban was minimal, certainly compared to subsequent EU tobacco control directives and recent tobacco industry lobbying to remove the ban.[3] This may reflect the underdeveloped state of the tobacco industry’s EU lobby in the 1980s and early 1990s, and the fact that the big tobacco companies dominating the EU tobacco market at the time did not have any commercial interests in smokeless tobacco. Sweden was not yet part of the EU (it became a member in 1995) and the interests of the largest European smokeless tobacco manufacturer, Swedish Match (then the Swedish Tobacco Monopoly), were predominantly confined to Sweden.[3]

Nevertheless, the proposed ban prompted the establishment of ESTOC in 1989, co-founded by UST and Swedish Match, “to promote understanding of the smokeless tobacco industry and its products and dialogue with retailers, the media, regulatory and/or advisory bodies”.[9][10] Despite finding little evidence of active lobbying by ESTOC, internal tobacco industry documents show that the Confederation of European Community Cigarette Manufacturers (CECCM) briefly lobbied members of the European Parliamentary Committee on Legal Affairs to encourage them to review the legality of the Labelling Directive, arguing that Article 100A was an invalid legal basis for banning a tobacco product.[3] It is unlikely that CECCM was threatened by the ban on smokeless tobacco. Instead, it is more probable that CECCM wished to challenge the legal basis of EU tobacco control legislation in general, a tobacco industry tactic that has been central to industry efforts to derail all key tobacco control efforts in Europe.[11]

Increased Opposition to the Snus Ban from the 2000s

Although the original ban on oral tobacco passed with relative little opposition, its reaffirmation in the 2001 TPD led to two legal challenges. The ban on snus became the subject of a heated and, at times divisive, public health debate which developed into a political issue, with several interests groups subsequently lobbying to have the snus ban lifted.

Legal challenges in 2002

Although UST successfully challenged the Irish and UK national smokeless tobacco bans[8], the EU-wide ban was challenged twice – unsuccessfully- in the European Court of Justice (ECJ). The challenges were brought by Swedish Match and German cigar manufacturer Arnold André (of which Swedish Match is a shareholder), against the UK and German Governments.[12] The claimants argued that the snus ban was in breach of the rules laid down in Articles 95, 133 and 253 TEC, and was in contravention with the EU’s principle of subsidiarity, and also in breach of the principle of “the freedom to pursue an occupation.”[13] In 2004, the ECJ rejected all arguments and upheld the validity of the ban.[14]

After failing in its legal challenges, Swedish Match then framed the ban as a political issue:

“This is now a matter for the political decision makers in the different EU institutions. The Swedish Government have stood by us in our legal challenge. The Government now must continue to take its responsibility in the political process and play an active role to remove the current ban, which is discriminatory to a Swedish manufacturer, but also to Sweden as a member state as well as to a million Swedish consumers”[14]

Swedish Government Lobbying on Trade Platform (2008-2013)

In line with Swedish Match’s tactic of turning snus into a political issue, the Swedish Government (Ministries of Health and Foreign Affairs) actively sought support in Brussels for a removal of the snus ban. The government’s key argument was that the ban is a violation of free trade principles, an argument first promulgated by Swedish Match over a decade ago.[15][16]

Image 2: Screengrab of Email from the Swedish Ministry of Health and Social Affairs to DG SANCO commenting on the interim RAND report, taken April 2015

It is noteworthy that the government has consistently ignored health warnings from its own public health experts at the Swedish National Board of Health and Welfare and the Swedish National Institute of Public Health (a state agency under the Swedish Ministry of Health and Social Affairs) about the negative health impacts of snus use.[17][18][19]

Sweden’s opposition to the ban was most evident during the revision of the 2001 TPD (2009-2014). Commenting to DG SANCO (the European Commission’s Directorate-General responsible for tobacco control) on an early draft of the TPD proposal in 2010[20], the Swedish Health Ministry was more concerned with trade and business impacts than health (image 2). The Ministry rejected a continuation of the snus ban, claiming it “resulted in cross-border market distortion”, and further criticised the proposed plain packaging option because “The introduction of plain packaging would thus have severe ramifications for the proprietors of such trademarks. Any such undermining of the protection of intellectual property rights must be handled seriously and with great precaution”.[20]

Sweden’s submission to the Commission’s public consultation at the end of 2010 voiced similar arguments, including that “In Sweden's opinion, there are no grounds for a ban on this tobacco product. Such a prohibition is contrary to the basic idea of a free market within the Union”.[21]

One of the most vocal Swedish politicians that lobbied against the snus ban was Swedish Minister for Trade between 2007 and 2014, Ewa Björling. Shortly before the public consultation closed, she wrote (in English) a letter to her “colleagues” urging them to respond to the consultation in favour of lifting the ban on snus, directing her colleagues to a website (www.sweden.gov.se/snus) set up by the Swedish Government to explain why snus should be legalised.[22] This website is no longer active (attempted access in April 2015).

In 2011, Björling further lobbied her European counterparts through the European Council’s Competitiveness Council, raising the snus ban as an internal market issue. In July that year she wrote to Health Commissioner Dalli, copying in the other Commissioners to her letter, claiming that the ban on snus was “disproportionate” and that there was no consensus on the health risks of snus.[23] One month later Björling was quoted in Tobacco Journal International, a tobacco industry trade journal, saying that the snus fight would continue, and that she was “not going to give up because I think the ban is unfair”.[24]
In early October 2012, weeks before Dalli was forced to resign in the ‘Dalligate’ controversy, the State Secretary to the Swedish Prime Minister hosted the Head of the Cabinet of EU President Barroso in Stockholm. According to a Commission’s file note, Sweden used this as an opportunity to push the snus issue.[25]. However, this attempt was seemingly unsuccessful as in December 2012 the Commission presented its TPD proposal, which maintained the snus sales ban. Trade Minister Björling told the media that there would be an "all-out war" if the EU directive didn't go Sweden's way, but in June 2013 Sweden abandoned its efforts to lift the EU ban on snus, shifting its focus to fight (successfully) the proposed flavouring ban for snus. "When it comes to the issue of exports, there's no way we can reach a successful outcome," the Swedish Health Minister Maria Larsson told the media at the time.[26]

Despite strong Swedish opposition, there was no support amongst other EU Member States to lift the ban of snus during the revision of the TPD.[27][28]

Swedish Match Overt and Covert Lobbying Practices

For information on Swedish Match’s overt and covert lobbying practices to remove the snus ban, see:

Big Tobacco Embracing ‘the Snus Cause’ (2008-2011)

Since 2008 transnational tobacco companies (TTCs) have lobbied EU Member States and the European Commission to lift the ban on snus, arguing that there is no evidence to support the ban and that snus can serve as a harm reduction product.[3]Philip Morris (PMI) and BAT responded to the 2008 UK Government Consultation on the Future of Tobacco Control and urged the UK Government to support lifting the ban on snus, among other things, citing the The Swedish Experience as proof of concept.[29][30] When the European Commission ran its 2010 public consultation on the TPD, PMI[31], BAT[32], Imperial Tobacco[33], and Japan Tobacco International[34] responded in favour of lifting the snus ban. Imperial Tobacco argued that “There is no evidence to justify the ban on the marketing and sales of snus”[33], whereas PMI suggested that public health concerns “should be addressed through regulation rather than the EU’s current policy of prohibition”[31], and BAT favoured a “more science-based regulation of smokeless tobacco products.”[32] In December 2011 the four big tobacco companies reiterated their desire to see the snus ban lifted in a meeting to discuss the TPD with DG SANCO.[35] However subsequent TPD lobbying efforts appear to have focussed on the measures TTCs felt most threatened by – namely the introduction of plain packaging, a point of sale display ban, and an ingredients ban.[36].

TobaccoTactics Resources

Notes

↑ 1.01.1European Union, Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco. Official Journal of the European Communities, 2014 L 127/1 (29/04/2014)

↑S. Wamala, "Free trade of Swedish moist snuff in the EU: Reflection from the Swedish National Institute of Public Health", Swedish National Institute of Public Health, 26 May 2009, accessed 10 October 2010